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Exclusion based on religion may not satisfy touchstone of constitution: Ex CJI RM Lodha

Manglore Today News Network

New Delhi, Dec 10, 2019: Former chief justice of India Justice RM Lodha spoke to Hindustan Times about the Citizenship (Amendment) Bill, 2019, which grants citizenship to religious minorities from three Muslim-majority countries in India’s neighbourhood, passed by the Lok Sabha after hours of debate.



Justice Lodha also spoke about the why people, politicians and celebrities reacted to the encounters killings of the four men accused of raping and killing the 26-year-old Hyderabad veterinarian in an exclusive conversation with Hindustan Times’ National Political Editor, Sunetra Choudhury.

Q. I want to start by asking you about the bill that is being debated in Parliament right now, the Citizenship (Amendment) Bill. Many say that it is unconstitutional because it discriminates on the basis of religion. The government denies it. Do you think it is unconstitutional?

A. It is premature to make any observation on this law and we don’t know what will be the ultimate structure of this law. Exclusion based on religion may not satisfy the touchstone of constitutional provisions.

Q. Many people are celebrating the encounters of the alleged rapists and murderers of the Telangana vet. They are saying the judiciary takes too long. What is your reaction to that?

A. It’s shocking. People seem to have lost faith in the rule of law. It appears that we are heading to (if you’ve heard) Hammurabi’s code, which was the 17th century (BCE) code by a Babylonian king. The prologue of that code said: “To make justice visible in the land, destroy the wicked and the evildoer.’’ An eye for an eye, tooth for tooth, nail for nail, that used to be the punishment. We are heading towards that, it’s mob mentality. We seem to have lost our faith in a fair trial, the criminal justice system, processes. This is really unfortunate.

Coming as it is from lawmakers, people who have taken an oath to protect the citizen’s rights in accordance with the Constitution, they are talking like this, it’s really unfortunate, it’s really unfortunate. I can’t say it is ignorance of law because if a minister of Telangana says the police did what they were asked to, I think we have destroyed the rule of law and heading towards very bad times.

Q. How do we change that? How do we turn it around?

A. We have to improve the criminal justice system. Right now it is in a shattered position. The criminal justice system has four main components—the police, the prosecution, the bar and the judiciary. In 2006, the SC in the Prakash Singh case issued directives in police reforms. Two key directives were to separate investigation from law and order and to ensure that the government does not make unwarranted interference in police functions. Both of these directives and many others which have been given by the SC remain unimplemented for more than 13 years.

So far as prosecution is concerned, it largely depends on investigation. Scientific investigation is a core part of an investigation and you’ll be surprised to know, in a country of 1.3 billion, we have only seven forensic laboratories. The reports from CFSL (Central Forensic Science Laboratory) remain pending for months and years and therefore the prosecution is either delayed or it’s not effectively completed. Then comes the bar. The lawyers in the matters of serious crimes even they seek an adjournment and the judiciary because of workload, grants adjournments at the drop of a hat. It is all these multiple factors that have really created this situation. The government is spending hardly 0.08% of the GDP on the judiciary. How do you expect systems to improve? Thirty to forty percent vacancies remain and justice is not given in time.

Q. We’ve seen celebrities welcome it. Is the judiciary also divided or unanimously condemn it?

A. No, no, this is wrong. How can judiciary be divided on it? The first work of judiciary is to maintain the rule of law. Every accused must be brought to justice, this is not the way. This is not justice.

Q. So what should happen to the police officers who have done this?

A. They should be brought to justice now because nobody can escape it. Rule of law must run its course.

Q. So then why are people, who we look up to, welcoming it?

A. Because I told you, we are heading to a mob mentality. We are heading to a system where the rule of law doesn’t work. People want instant justice. They don’t believe in a fair trial, they have forgotten constitutional norms. The very faith in the system seems to have been lost. We have to improve the systems instead of destroying it by applauding wrongful acts of police encounter or anything like that.

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